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Avoid employing illegal workers

Practices risk unlimited fines by hiring someone barred from working in the UK, explains Claire Brook.

GP employers need to be aware of their responsibilities under the Immigration Asylum and Nationality Act 2006 when recruiting. These relate to all staff whose employment began on or after 29 February 2008.

Fines and prison
From this date, an employer who knowingly hires an illegal worker has committed a criminal offence and could be liable to a prison sentence of up to two years or an unlimited fine.

However, if you negligently hire an illegal worker, this is a civil offence for which you could be fined up to £10,000 (per illegal worker).

The Border and Immigration Agency (BIA) will take into account several criteria, including the nature of the checks that the employer made to determine the prospective staff member's status, when deciding the fine.

Statutory defence
Employers are required to satisfy themselves that new staff members are UK citizens or from countries whose citizens have the right to work in the UK or that they have the required immigration permissions.

If accused of negligently employing an illegal worker, you can invoke a statutory defence to avoid judgment going against you if, before confirming employment, you checked and copied certain original documents provided by the individual listed in 'Prevention of Illegal Working, Civil Penalties for Employers' code of practice' on the BIA website.

Prospective staff
You must take steps to ensure that the documents the prospective employee supplies are genuine and still valid.

These include comparing photographs and dates of birth against the individual's appearance and apparent age.

Practices should also check whether any government endorsements or professional regulatory body certification (for example, the GMC in the case of a doctor recruit) that entitle the potential employee to undertake the type of work offered are still in date.

Make photocopies and keep these for at least two years after the individual's job ends.

You should carry out these checks on all shortlisted applicants. Failure to do so could risk race discrimination claims for treating applicants of non-UK descent differently and less favourably.

Documents to check
If the potential employee is not subject to immigration control and there are no restrictions on their length of stay in the UK, the employer is required to check the applicant has one of the documents in List A in appendix 1 of the Civil Penalties code of practice. These include:

  • A passport showing that the holder is a UK citizen or has UK right of abode.
  • A passport or national identity document showing the holder is an EEA or Swiss national.

If the individual's right to enter or stay in the UK has a time limit, they will need to produce one of the documents in List B of the appendix.

These include a passport or other travel document endorsed to show that the holder is allowed to stay in the UK and permitted to do the work in question, provided the work does not require a work permit.

Full lists for both A and B are included in the BIA guidance (see resources box)

If the practice checks the document, and does this every subsequent 12 months the individual stays on its payroll, the statutory defence will apply.

Work permits
While all foreign nationals have to produce either a List A or List B document, some may also need a work permit to be legally employed in the UK. See the box for those exempt from this requirement.

Current and future staff
Practices should review all existing employees to check that they have the right to work in the UK. You should also put procedures in place to ensure you comply with the Immigration Asylum and Nationality Act 2006 when recruiting - including making any job offers subject to receiving satisfactory identification documents.

Solicitor Claire Brook is an associate in the employment team at Aaron & Partners in Chester; www.aaronandpartners.com

Work permits not required

  • British citizens, except British Dependant Territories citizens, or British Overseas citizens.
  • Certain citizens of British Overseas Territories.
  • Persons who have the right of abode in the UK.
  • Persons who have indefinite leave to remain in the UK.
  • European Economic Area (EEA) nationals. However, nationals of the Czech Republic, Estonia, Latvia, Lithuania, Hungry, Poland, Slovenia and Slovakia, are subject to the Workers Registration Scheme. Citizens of Romania and Bulgaria will not have an automatic right to work in the UK until at least the end of 2008.
  • Swiss nationals.
  • Commonwealth nationals who have a grandparent born in the UK or Ireland.
  • Commonwealth 'working holiday' citizens who are permitted to work for their period of stay.
  • Highly skilled migrants.
  • Spouses or unmarried partners of UK work permit holders and their dependant children under the age of 18 (with conditions).
  • Students who can work 20 hours a week in term time and full-time in vacations provided they are not occupying a permanent position.

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